Allegations of illegality—sometimes quite serious in nature—are, sadly, no stranger to the presidency. Nearly every recent President has faced some sort of scandal and attendant inquiry. They all sound familiar. Obviously, there is Nixon’s benchmark Watergate scandal. But then there is also the Iran-Contra affair of Reagan’s presidency. Clinton’s extramarital activities. George W. Bush’s involvement in outing Valerie Plame as an undercover CIA officer. Biden’s personal possession of classified documents. Trump’s involvement in the January 6 attacks on the Capitol. Safe to say, these matters show no sign of abating. The theater of investigations that follow these scandals is also familiar, all promising some version of accountability. Special prosecutors are appointed. Inquiries are launched. Grand juries are sometimes convened. Congress may even bring articles of impeachment or hold an actual impeachment trial.
But the political fight often focuses on the investigation itself. Claims of executive privilege prevent access to key documents, allegations of partisanship color the investigations, and constitutional constraints abound, all while accountability remains elusive. In an incredible read and a fantastic example of one of my favorite forms of scholarship, Professor Jonathan Shaub sketches a vision for reforms that parts the muddy waters of our current practices and shows us a practical and meaningful path to accountability at the highest levels of the executive branch. Indeed, the best part of Professor Shaub’s vision, laid out in White House Inspection, is that he divorces the trickier consequences—actual enforcement or legal peril—from the kind of accountability that frankly has often had greater effect, the watchful eye of an independent party empowered to inspect the actions of the President.
Professor Shaub begins by documenting and evaluating our current methods for executive accountability: primarily special prosecutors and congressional investigations. (He also briefly explores special commissions, such as the 9/11 Commission, or inspectors general, but these bear less direct relevance to investigating presidential misconduct.)
Carefully tracing the history, Shaub demonstrates how special prosecutors predate Watergate, but Watergate made them more prominent. After that scandal, the Ethics in Government Act of 1978 established the office of Independent Counsel as a permanent feature of the Department of Justice. Yet, subsequent high-profile investigations nonetheless appeared partisan, and the power of the office was questioned, leading to its lapse in statutory authorization. Subsequently, the DOJ enacted regulations (still in effect) to authorize the Attorney General to appoint an internal independent prosecutor in their discretion, and even recent special prosecutors have been appointed outside that authority and not constrained by its provisions.
Why aren’t independent or special counsel sufficient for these purposes? In short, Shaub compellingly explains, they have never really operated independently enough in some respects, yet have operated all too independently in others. For example, these investigations have become political weapons in many instances, rather than investigations by neutral third parties. But they also have empowered the appointed individual to specially investigate a single person to the full extent of their authority, justifying their existence only by racking up enormous costs, burdening the target of their investigation, and eventually finding some offense to show for it. Indeed, this “single-purpose prosecutor” risks serious interference with the executive by doggedly pursuing their mission to the fullest extent of their authority.
Congressional investigations fare no better in Shaub’s evaluation. While Congress’s authority to investigate executive malfeasance—including to demand information by subpoena—is an implied power directly under its constitutional legislative authority, Shaub describes how the scope of that constitutional authority is often contested in important ways. Indeed, both the breadth of Congress’s authority and, perhaps more prominently, the fight over whether Congress’s subpoena power is subject to claims of executive privilege and in what context are inherent separation of powers conflicts that potentially limit Congress’s reach. In addition, Congress has no enforcement authority for its subpoena power, and going to court is typically impracticable. Beyond constitutional concerns, however, Congress is so inherently partisan that its investigations lack the kind of legitimacy in the eyes of the public that one would hope for. And finally, but importantly, Congress often lacks the expertise needed to effectively investigate.
On top of those failures, both independent prosecutors and congressional investigations present problems regarding confidentiality. The executive branch does not want to lose control over sensitive information to another branch of government, especially one with potentially partisan motivations that incentivize disclosures. And the internal investigations with special prosecutors have the ancillary effect of producing an enormous volume of materials that lead to Freedom of Information Act requests and other fights over access.
This leads us to the payoff of Shaub’s fascinating history and careful critique of our existing oversight mechanisms. Shaub makes a conceptual move that is as simple as it is brilliant: he advocates for carving out any actual law enforcement function, and creating a body whose sole purpose is to, as he puts it, “inspect.” Shaub asserts that by focusing on “inspection” (as distinct from investigation which accompanies an expected prosecution), the function can be housed in a body that maximizes independence, objectivity, expertise, and accountability. This new “inspection” function would be housed in a standing multimember body located in the Department of Justice, but granted various protections for independence (such as staggered terms, appointment qualifications, party balance, and, so long as we have them, removal protections). This body would be empowered to collect information about White House activities, including the power to issue administrative subpoenas, but not the power to bring charges or enforce, for which referral to another authority would be necessary. Solutions that stand apart from criminal prosecution are more necessary than ever, given that the Supreme Court raised the specter that some vast swath of presidential conduct is beyond the reach of criminal investigations entirely in Trump v. United States. Even if not referring any matter for criminal enforcement, however, Shaub says this body should be required to make regular reports to the DOJ and to Congress concerning its activities.
This sort of internal watchdog, Shaub points out, is not brand new; analogs are sprinkled here and there in existing practices. But for those of us thinking hard about new kinds of accountability structures in government, a proposal like this is extremely exciting. In the past, I have proposed an independent information commission as a mechanism to implement and enforce government transparency obligations; Professor Shaub’s proposal shares some core features by imagining a government counterweight to ever-growing executive power. But what Shaub does beautifully is imagine not just how this body could solve the existing problems, but the ways that this opens up possibilities for flexibility moving forward. He posits that this body also be charged with inspecting judicial ethics matters at the Supreme Court, or could Congress delegate competency inquiries to this body for the purposes of the 25th Amendment?
If you, like I, are desperately seeking more creative solutions for accountability in government, you should read Shaub’s illuminating work. And then we should figure out how to make that vision a reality.
